Tuesday, May 28, 2013

Judith Collins' crusade to be "tough on crime" continues, with a new Objectionable Publications and Indecency Legislation Bill. The bill kicks child pornographers in an effort to grub votes increases the penalties for making, importing, and possessing objectionable publications, makes prosecutions easier by removing the requirement for the consent of the Attorney-General, and introduces a new offences of "indecent communication with a young person under 16". While there's some good ideas in here, in general the bill is a mindless kneejerk aimed at appearing "tough on crime", which distorts the justice system and will chill online communication.

While the government's rhetoric arond the bill is all about "child pornography", the legal definition of "objectionable" is somewhat wider than this, covering not just non-consensual and extremely degrading or dehumanising sexual practices, but also anything "injurious to the public good", including material encouraging crime, racism, or terrorism. A complete list of the books deemed objectionable is here; it includes books on how to grow marijuana, The Anarchist Cookbook, and a Cradle of Filth t-shirt. It also includes a large backlog of material banned in the 60's and 70's about homosexuality, polyamory, and interracial relationships which would never be considered "objectionable" today. So, the government isn't just kicking child pornographers - it is also kicking bookshop owners, heavy metal fans, and people who want changes to our drug laws (sadly I suspect that Collins' target demographic doesn't draw much of a distinction). And at this stage its worth mentioning that the bills' Regulatory Impact Statement [PDF] does not mention freedom of speech or the Bill of Rights Act once.

But even looking at it purely from a "fighting child pornography" perspective, the bill is still a mess. As the RIS points out, the proposal to increase penalties creates a perverse situation whereby making or distributing indecent material carries a higher penalty than the physical crime it depicts. For example, performing an indecent act with a child under 12 currently carries a penalty of 10 years imprisonment. Under the bill, filming it (or importing or distributing a depiction of it) will carry a penalty of 14 years. Sexual connection with a child under 16 carries a penalty of 7 years. Mere posession (a strict liability offence) of a depiction of it will send you to jail for 10. When depiction is punished more severely than the underlying physical offence, then something is deeply screwed up.

But worse, the bill creates a new offence of Indecent communication with young person under 16. What's an "indecent communication"? Sorry, its not legally defined. Which means that its down to ordinary police officers to decide, with no real guidance. As some of those police officers are fundamentalist Christian bigots, we're going to get some horror stories from this. i already have people asking me whether it is safe to link (an "indirect communication" with any 16-year olds who are reading) to sex education material, and its quite conceivable that the wrong police officer could decide that that's "indecent" and bring a prosecution - and there will be no check on them doing so. Previously, objectionable materials and indecency cases have required the Attorney-General's consent to prosecute. The bill removes that protection for all but private prosecutions, basically putting us at the mercy of ordinary plods (it does the same for the existing indecent object offence, meaning we can probably expect a police prosecution next time something like Piss Christ or Virgin in a Condom is displayed in New Zealand).

Such an uncertain law can only have a chilling effect on communication. It would be vastly improved by retaining the consent to prosecution protection for the indecency offences.